Michael Theriault, left, and his brother Christian Theriault enter a court in Oshawa, Ont., on Nov., 12 2019.Christopher Katsarov/The Globe and Mail
A white off-duty Toronto police officer has been found guilty of assaulting a Black teenager, but his brother, who also participated in the violent altercation, has been fully acquitted.
The highly anticipated decision was broadcast live on YouTube to more than 18,000 viewers – nearly enough to fill Toronto’s Scotiabank Arena – drawn in after this month’s global protests against police violence and anti-Black racism.
Michael Theriault and Christian Theriault were found not guilty of aggravated assault and obstruction of justice in the December, 2016, attack on Dafonte Miller, then 19, who lost an eye and sustained several other injuries. Michael Theriault was convicted of the lesser charge of assault, which carries a maximum sentence of five years in prison.
Before getting into the evidence, Ontario Superior Court Justice Joseph Di Luca acknowledged the backdrop of the decision.
“My task is not to deliver the verdict that is most clamoured for … [or] to conduct a public inquiry into matters involving race and policing,” he said.
In a news conference after the ruling, Mr. Miller said he did not feel the outcome was a loss.
“A lot of my brothers and sisters are going through similar situations as me and a lot of my people are dying and a lot of officers are walking. So I don’t feel like I took a loss – I feel like we took a step forward,” he said.
During the four-hour broadcast of his decision, Justice Di Luca made clear that the Theriaults “probably” violently assaulted Mr. Miller. But the mere possibility that Mr. Miller brandished a metal pipe against them as a weapon, and that the Theriaults’ actions could then be viewed as self-defence, raised enough reasonable doubt that Justice Di Luca said he could not convict either of aggravated assault. He also said there was not enough evidence that they intentionally misled investigators to convict them of obstructing justice.
During the 2019 trial, Mr. Miller and the Theriaults told different stories of how they encountered each other early on Dec. 28, 2016. Mr. Miller said he was walking down a residential street with friends when the Theriaults emerged from their garage, questioned them and began chasing him.
The Theriaults said they were in their garage and heard someone getting into their parents’ pickup truck, and chased Mr. Miller to make a citizens’ arrest. The defence said Mr. Miller and his friends were going into unlocked vehicles to steal items. Justice Di Luca said he believed this version of events.
Mr. Miller testified at trial that the brothers chased him between two houses and beat him with their fists, feet and a 1.2-metre metal pipe.
The Theriaults said it was Mr. Miller who hit them with the pipe, which Justice Di Luca said he could not rule out.
A home owner who saw the fight called 911, and testified in court that two individuals repeatedly punched a third person, who did not fight back.
When Mr. Miller briefly escaped his attackers, he banged on the door of this witness’s house, screaming for the occupants to call 911.
Justice Di Luca concluded that around this point, Michael Theriault hit Mr. Miller in the face with the pipe, and later held him down and stabbed him with it.
But there was some doubt about whether Mr. Miller’s catastrophic eye injury (which would meet the bar for an aggravated assault charge) was a result of being hit with the pipe or in keeping with what a forensic pathologist suggested in testimony, more likely caused by a punch.
If the latter, it might have come when the Theriaults were acting in self defence, Justice Di Luca explained.
Still, he made clear that he did not buy the Theriaults’ story of why they chased Mr. Miller.
“I am satisfied that Michael Theriault’s initial intent was not to conduct an arrest. It was likely to capture Mr. Miller and assault him,” he said.
At one point during a 911 call played in court, Christian Theriault can be heard telling Mr. Miller, “You [messing] in our cars ... ? You picked the wrong cars.”
The comment “suggests that at least in Christian’s mind, retribution has been served,” Justice Di Luca said.
Durham Regional Police officer Barbara Zabdyr testified that when she arrived, she gave her handcuffs to Michael Theriault – who was in plain clothes and sock feet – and allowed him to place them on Mr. Miller, on whom he was sitting.
Initially, it was Mr. Miller who faced charges, including assault with a weapon and theft under $5,000. Weeks later, Ontario’s police watchdog, the Special Investigations Unit, charged the Theriaults after Mr. Miller’s lawyer, Julian Falconer, contacted them. The charges against Mr. Miller were later dropped.
While Justice Di Luca said there were many credibility issues with Mr. Miller, who he believed lied about breaking into vehicles, he added: “I must keep in mind that as a young Black man, Mr. Miller may well have had many reasons for denying any wrongdoing, including distrust of law enforcement.”
Pascale Diverlus, a founding member of Black Lives Matter Toronto, said the verdicts caused no surprise or disappointment because they are part of a flawed system.
“You know, a guilty or not guilty verdict doesn’t change what happened. It doesn’t give [Mr. Miller] his sight back. It doesn’t take away the paranoia that he’s probably feeling,” she said.
At a news conference on Friday, Toronto Police Chief Mark Saunders declined to comment on Michael Theriault’s future as an officer until after the court’s 30-day appeal period.
“I can’t deny that this matter will have an increased strain on the relationship between police and the community – specifically the Black community, especially those who have lived experienced of discrimination in the justice system or by the police,” Chief Saunders said.
In his verdict, Justice Di Luca noted it was worth considering how officers who responded that night might have behaved if they came upon a Black man “dressed in shorts and no shoes, claiming to be a police officer, asking for handcuffs while leaning on top of a significantly injured white man.”
With a report from Molly Hayes
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